F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 23, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JUAN REYES,
Plaintiff-Appellant,
v. No. 06-3234
(D.C. No. 06-CV-3125-SAC)
M .X. SEDILLO, Unit M anager, (D . Kan.)
USP-Leavenworth; UN ITED STATES
BU REA U O F PRISON S; and UN ITED
STA TES O F A M ER IC A,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Juan Reyes, a federal prisoner proceeding pro se on a Bivens complaint, 1
seeks declaratory and injunctive relief, damages, and a jury trial related to
allegations that federal prison staff violated his civil rights under the Fifth and
Sixth Amendments to the Constitution. 2 He claims that defendants denied him
access to the prison law library or to legal assistance during a time when he
would have been preparing his brief to support the direct appeal of his criminal
conviction, thus denying him his constitutional right to access the courts.
Specifically, M r. Reyes alleges that, because he w as forced to w ork sixteen hours
a day in the prison kitchen during a lockdown, he was unable to spend any time
working in the prison law library. As a result, he was forced to hire an attorney at
the cost of $5,000, who ultimately rendered ineffective assistance on the direct
appeal. In addition to the relief described above, M r. Reyes also requested a
written statement from the Bureau of Prisons to the United States Court of
Appeals for the Eighth Circuit asking that he be allowed to present claims that his
counsel failed to present on direct appeal.
1
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). M r. Reyes’s complaint sought relief under 42 U.S.C.
§ 1983; the district court construed the complaint as a Bivens action.
2
W e note, w ithout deciding, the question of whether M r. Reyes can properly
bring a Bivens cause of action alleging violation of the Sixth Amendment. See
Corr. Servs. Corp. v. M alesko, 534 U.S. 61, 66-68 (2001) (explaining that
Supreme Court has recognized Bivens causes of action only in Fourth, Fifth, and
Eighth Amendment cases).
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The district court found no causal connection between M r. Reyes’s working
extra hours and any purported ineffectiveness of appellate counsel and dismissed
the complaint for failure to state a claim on which relief could be granted under
28 U.S.C. § 1915A(b). 3 The district court did not address whether M r. Reyes had
stated a Bivens claim with regard to the expenditure of the $5000. M r. Reyes
appeals, and we affirm. 4
Our jurisdiction arises under 28 U.S.C. § 1291. W e conduct a de novo
review of a dismissal for failure to state a claim under § 1915(A ). M cBride v.
Deer, 240 F.3d 1287, 1289 (10th Cir. 2001).
W e agree with the district court that M r. Reyes’s claim of ineffective
assistance of appellate counsel is too attenuated from the actions of these
defendants to be justiciable under Bivens. The district court correctly concluded
that “[e]ven though the longer hours resulted in the plaintiff’s decision to retain
counsel, the injury arising from the performance of that counsel is not attributable
to the defendants.” R. Doc. 5 at 3.
3
Defendants were not served with the complaint at issue and did not enter an
appearance in this matter.
4
The district court granted M r. Reyes’s motion to proceed on appeal in
form a pauperis under 28 U .S.C. § 1915. W e remind M r. Reyes that he must
continue making payments on his appellate filing fee until the entire balance is paid.
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As for the expenditure of $5,000, we discern no constitutional basis to
support a Bivens claim making defendants liable for damages in that amount.
Initially, we note that M r. Reyes did not have a constitutional right to appear pro
se on direct appeal. M artinez v. Court of Appeals of California, 528 U.S. 152,
163 (2000). Further, M r. Reyes’s right to access the courts is only the right to
“be able to present [his] grievances to the courts,” not that he be provided the
opportunity to “conduct generalized research.” Lewis v. Casey, 518 U.S. 343, 360
(1996).
Before the lockdown, M r. Reyes had already asked the Eighth Circuit to
allow his appointed appellate attorney to withdraw. 5 Thus, M r. Reyes had been in
a position to be able to present his grievance to the Eighth Circuit via appointed
counsel, but he chose to ask for substitute counsel. The Eighth Circuit granted
the motion to withdraw but denied M r. Reyes’s motion for appointment of new
counsel. M r. Reyes’s own action in asking that his appointed counsel be allowed
to withdraw was a more direct cause of his eventual need to spend $5,000 for a
new attorney than anything defendants did. Plaintiff’s problems were caused
more by himself than by defendants. It was not defendants’ fault that the Eighth
Circuit refused to appoint new counsel or that it did not grant him enough extra
5
Appointed counsel concurred in this request.
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time to file his brief pro se. It is axiomatic that this court cannot grant M r. Reyes
relief from decisions rendered by a sister circuit.
To the extent M r. Reyes advances claims on appeal based solely on the
Fourteenth Amendment, we note that he did not raise those claims in the district
court thus precluding review by this court. Walker v. M ather (In re Walker),
959 F.2d 894, 896 (10th Cir. 1992).
The judgment of the district court is AFFIRMED.
Entered for the Court
David M . Ebel
Circuit Judge
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